- A recent peer-reviewed academic study conducted in NSW, highlights correlations between the right to silence and mitigated outcomes for socially marginalised criminal defendants in the summary jurisdiction.
- The study maps the use and effects of silence rights throughout the criminal process.
- It provides insight into the strategic possibilities for silence rights.
The operation of the right to silence and its impact upon conviction is popularly thought of as a lawyerly mystery. In academic literature, its empirical measurement in the United Kingdom (UK) has mostly yielded a null hypothesis. That is, the right to silence has been found not to matter much to overall rates of conviction, with some commentators going so far as to label it a ‘sacred cow’ of lawyers (JD Jackson, ‘Curtailing the right to silence: Lessons from Northern Ireland’ (1991) 6 Criminal Law Review 404).
A new peer-reviewed study undertaken by the author in New South Wales (NSW) and published in an international legal journal, however, has shed new light on the use and effects of silence rights in this jurisdiction (see Eugene Schofield-Georgeson, ‘Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales’ (2020) 24(1) The International Journal of Evidence and Proof. Available online at: https://journals.sagepub.com/home/epj). In particular, the study was able to show:
- the extent to which silence rights laws affect marginalised groups of criminal defendants;
- how silence rights operate in respect to charges in which silence is at issue (such as those involving a fault or mens rea element, as opposed to strict liability offences); and
- the ways in which decision-making by suspects operates within the criminal process.
Essentially, the study suggests that silence rights play a significant role in mitigating the effects of the criminal law, in particular the impact of convictions upon a marginalised group of defendants.
These findings should be of acute interest to criminal law practitioners in NSW.
What do we mean by the right to silence?
Silence rights lie at the root of legal rules governing the admissibility of confessional evidence. These rules are sometimes said to involve a bundle of interrelated rights and freedoms, including: (i) voluntariness of confessional evidence; (ii) the presumption of innocence; (iii) the burden and standard of proof; (iv) the protection agains self-incrimination; (v) a prohibition against adverse inference being drawn against the accused from their silence during official questioning; and (vi) the right to counsel. The study at hand was mainly concerned with examining the operation of the burden and standard of proof in conjunction with the protection or privilege against self-incrimination.